Court Affirms Patient's Right to Confidentiality

Author: Larry M. Simonsmeirer, JD, RPh

Issue of the Case: In a case with some powerful language about the duty of a pharmacist, a New York court was asked to decide whether pharmacists owe a duty of confidentiality to their patients?in this particular instance, when they sell their prescription records upon discontinuing business.

Facts of the Case:When the defendant independent pharmacy owner decided to cease doing business, the codefendant chain store purchased the prescription records as part of its ?independent file buy program.? These records contained, in addition to prescriptions, information on patient health, known allergies, chronic diseases, and drug reactions.

The plaintiffs were a group of patients of the former independent pharmacy. They alleged that, as a condition of the file buy program, the chain store had forbidden the independent pharmacy from giving them advance notice of the closing or the transfer of the patient information.

One of the primary plaintiffs was diagnosed as HIV-positive and later developed AIDS. He claimed that he had selected the independent pharmacy based on an expectation of privacy. He expected that the pharmacy would keep all personal medical and prescription information confidential and not disclose it without his prior knowledge and consent. He and the other plaintiffs, however, did not learn of the transfer of the information until after the pharmacy had closed.

The chain pharmacy incorporated the information from the independent pharmacy into its nationwide computer database, which made this confidential information accessible to tens of thousands of the chain?s employees, as well as the employees of the health care plans and managed care providers that contracted with the chain.

The plaintiffs claimed that the independent pharmacy had violated a pharmacist?s statutory and fiduciary duty of confidentiality. These violations, they alleged, had been aided and induced by the codefendant chain pharmacy. In response, the defendants asserted that they had no duty of confidentiality, and that, if one does exist, they did not breach that duty by transferring the records of a discontinuing pharmacy to another licensed pharmacy.

The defendants contended that prescription and other patient records that they are required by law to maintain are the property of the pharmacy. They argued that patients have no right to reclaim those records when a pharmacy ceases doing business.

The Court?s Ruling: The New York court ruled, in part, that pharmacies owe a fiduciary duty regarding privacy of prescription records. Nothing in the law is intended to sever a pharmacist?s duty of confidentiality upon the sale of prescription records. The court denied the defendant?s motion to dismiss these claims. In a subsequent action, the lawsuit was certified as a class action, with the plaintiffs seeking $200 million in damages.

The Court?s Reasoning: A fiduciary duty arises where 1 party places trust and confidence in another and reasonably relies on the other?s superior expertise or knowledge. Because pharmacists are responsible for collecting confidential medical information and providing drug advice to patients, the patient must disclose personal information not generally provided in other commercial transactions. Contrary to the defendants? contentions, the therapeutic relationship surrounding a prescription does not end when a patient leaves the physician?s office. The court found that, although the role of a pharmacist may not equal that of a physician, the pharmacist is not merely the dispenser of a commercial product. Because pharmacists have a vastly superior knowledge of drugs, patients place a great deal of trust and confidence in the pharmacists filling their prescriptions.

The plaintiffs claimed that the defendant pharmacies engaged in deceptive practices because these pharmacies did not inform them of the sale of the records. The court agreed with the plaintiffs and held that withholding this information ?appears deceptive.? By not giving the plaintiffs the opportunity to take their prescriptions elsewhere, the ?plaintiff?s right to prevent disclosure was forever impaired.?

Larry M. Simonsmeier is Emeritus Professor of Pharmacy Law at Washington State University College of Pharmacy.